Staying in compliance with federal regulations is just one of many items on a business owner’s list of things to do.
Unless there is a serious, immediate hazard that must be rectified immediately, potential violations of OSHA standards will not be reported to enforcement staff, and the employer will be allowed to correct any violations within a certain time period.
Although dialysis facilities already have enough on their plates, it’s also necessary to occasionally take a time-out and determine how safe the clinic is, for employees and patients.
The mission of the Occupational Safety and Health Administration (OSHA) is to ensure the safety and health of America’s workers by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.
In other words, OSHA does not just focus on enforcement; it does not just perform inspections and call it a day. Instead, the federal agency works with employers to ensure that workplaces are both healthy and safe.
OSHA has a long list of do’s and don’ts, and although none of them are written to exclusively apply to dialysis facilities, the standards specific to healthcare do apply to these clinics. Penalties can be severe for those who do not follow those standards.
In a dialysis clinic, many familiar standards apply — such as those for fluid spills, bloodborne pathogens, and sharps safety. Personal protective equipment is another key area.
In early 2007, the National Kidney Foundation’s Annual Spring Clinical Meeting hosted a session on the most frequent OSHA citations in dialysis facilities (see sidebar on p. 25), presented by Lawrence K. Park, the vice president of corporate health, safety, environmental affairs, engineering, security, and risk management for Fresenius Medical Care North America.
Park addressed these top 10 citations, defining how to maintain regulatory compliance in dialysis, and examining the consequences when a facility is found to be out of compliance. He also drew upon a previous article from the October 1998 issue of the Renal Research Institute’s Dialysis Times, “What Can I Expect With an OSHA Inspection?”
Some distinctive programs for educating employees are used by certain facilities—according to Park, these may include “root cause analysis of injuries and illnesses, loss prevention mitigation strategies, clinical patient and employee safety training modules, general workshop training and an OSHA general industry workshop,” he said.
Of particular interest to a facility undergoing its first OSHA inspection is this — When a problem is found, the facility is cited. And Park said a warning is not given before the citation is issued.
OSHA inspectors examine a surprisingly large number of items, which can include tuberculosis exposure, means of egress, noise exposure, compressed gases, even back injuries. If an inspector finds a failure to adhere to a standard, he or she has several options, up to and including fines.
Ensuring Compliance
“With regard to measures employers may take, employers must first perform a workplace assessment to identify all potential hazards,” said Dionne Williams, senior industrial hygienist, Office of Health Enforcement, Directorate of Enforcement Programs at OSHA.
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Frequent OSHA Violations in Dialysis Clinics
Lawrence Park, MSPH, CHCM, CPEA, CWCP, CNCI, RPIH, vice president of corporate health, safety, environment affairs, engineering, security and risk management for Fresenius Medical Care North America, broke down which items, specifically, crop up most frequent when dialysis clinics are inspected. For dialysis clinics with a SIC Code of 8092, the regulations most frequently cited by OSHA for October 2005 through September 2006, are as follows.
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One of the most commonly encountered hazards is employee exposure to blood and or other potentially infectious materials, she added. “Employers must determine what jobs will expose employees to patients’ blood and provide protection to those employees. An exposure control plan (ECP) must be developed and implemented, which will outline the procedures, policies and work practices that will be used for employee protection. Included in this plan should be the determination for use of engineering controls (e.g., sharps with engineered sharp injury protection and/or needle-less devices) to protect employees from accidental needlesticks. Employers must review and update the facility’s ECP annually and must involve non-managerial employees with exposure to blood in the process for selecting appropriate safety devices.”
In addition, she added, employees must be provided personal protective equipment (PPE) that will allow them to do their jobs safely (e.g., gloves, eye protection, face masks when necessary). “Employees must also be provided training and must be offered the hepatitis B vaccination. Additionally, employers must put in place a plan for providing prompt postexposure evaluation and follow-up to all employees who experience an exposure incident (e.g., a needle stick or mucous membrane splashes with blood).”
Certain standards are violated more commonly than others; they seem to lend themselves to contravention. Williams described several that were noted most often during OSHA inspections in the last year. “The most frequently cited OSHA standard during last fiscal year was the bloodborne pathogens standard (29 CFR 1910.1030),” she said. “The violations found most frequently were for failure to use safety-engineered sharps (e.g., safety needles) and for failure to review and update the facility’s exposure control plan annually.”
There are both free and paid programs available to train staff in OSHA compliance. Employers are responsible for making sure their employees are current in their training for compliance, and are required to implement a training program to educate employees of the hazards in the workplace. Also, Williams pointed out, they must “equip them with the knowledge of how to protect themselves, what PPE to use, and what to do in emergency situations. With regard to bloodborne pathogens training, for example, employees must know what PPE to use for certain tasks and what the protocol should be in the event of an accidental needlestick.”
When a facility is found to be out of compliance, the penalties can be severe. “OSHA citations carry penalties based on the seriousness of the citation,” Williams explained. “A violation that is determined to be a serious citation may carry a penalty up to a maximum of $7,000.”
Penalties
“OSHA penalties range from $0 to $70,000, depending upon how likely the violation is to result in serious harm to workers,” said another OSHA spokesperson. “Other-than-serious violations often carry no penalties, but may result in penalties of up to $7,000. Serious violations may have penalties up to $7,000. Repeat and willful violations may have penalties as high as $70,000.”
But these figures are not written in stone. In fact, the spokesperson said, “Penalties may be discounted if an employer has a small number of employees, has demonstrated good faith, or has few or no previous violations. For more information on OSHA penalties, see Section 17 of the OSH Act or information on penalties in the OSHA Publication All About OSHA.”
According to information on the OSHA Web site, the process from inspection to penalty works like so: The compliance officer performs an inspections and reports his or her findings to the area director, who then determines what citations will be issued (if any), and what penalties will be proposed (if any).1
Officially, a citation is used to inform the employer and employees which regulations and standards were allegedly violated, and also informs the employer how long he or she has to rectify the situation—known as “abatement.” Once the employer receives a citation (or citations), he or she is required to post a copy of each one of the citations at or near the place where the violation occurred. The citation must remain posted for at least three days, or until the violation is abated, whichever is longer.
There is a broad range of penalties. The agency breaks them down as follows:
“Other Than Serious Violation — A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer’s good faith (demonstrated efforts to comply with the Occupational Safety and Health Act of 1970 (known as “the act”), history of previous violations, and size of business. When the adjusted penalty amounts to less than $100, no penalty is proposed.
“Serious Violation — A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.
“Willful Violation — A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to $70,000 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually, no credit is given for good faith. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
“Repeated Violation — A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeated citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeated citation.
“Failure to Abate Prior Violation — Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
“De Minimis Violation — De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.”
There are additional violations that can be cited after the employer has been convicted of the original violation(s) — and these include the following:
“1. Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail, or both.
2. Violations of posting requirements can bring a civil penalty of up to $7,000.
3. Assaulting a compliance officer, or otherwise resisting, opposing, intimidating or interfering with a compliance officer while they are engaged in the performance of their duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than three years.”
OSHA notes that these procedures can vary, depending on the facility’s location, because some states have their own programs in place for occupational safety and health.
Appealing the Verdict
Both employers and employees are allowed to appeal a citation or lack thereof—for example, if an employee made a complaint to OSHA about the employer, but no citation was issued by the agency, the employee or employee representative has the right to request an informal review.
And employers are allowed to have an informal review with the OSHA area director if they are issued a citation; they can also officially contest a citation once it is issued, or the penalty associated with the citation. If that is the case, the issue will be assigned to an administrative law judge, who makes the final decision, but after the judge has ruled, anyone who is party to the case can ask for a further review. This final review will be performed by the Occupational Safety and Health Review Commission, an independent body. Those final rulings can be appealed in the U.S. Court of Appeals.
Education Programs
OSHA offers free consultation to employers, and offers extensive resources as well.
In a consultation, the employer is given recommendations to create and preserve a safe, healthy work environment, and if the consultant sees hazards, he or she will offer guidance to rectify the situation, instead of reporting it to OSHA.
State agencies or universities typically provide this service, using professional safety and health consultants. The consultant first provides the “ground rules” for the consultation, performs a walk-through, assesses the employer’s existing health and safety program, and provides a written report to the employer of any findings or recommendations, according to the agency’s Web site.
Unless there is a serious, immediate hazard that must be rectified immediately, potential violations of OSHA standards will not be reported to enforcement staff, and the employer will be allowed to correct any violations within a certain time period. Once this is done, the employer may be exempt from programmed enforcement inspections for a full year.
There are also Voluntary Protection Programs (VPPs), whose aim is to improve worker safety beyond the minimum required by law. These programs distinguish those employers who have implemented comprehensive safety and health programs, those who have motivated others to do likewise, and “establish a relationship between employers, employees, and OSHA that is based on cooperation rather than coercion,” according to the agency.
The agency offers a number of additional services at its area offices, including expert speakers, audiovisual aids on workplace hazards, and technical advice. Some even offer classrooms, laboratories, and libraries. RBT
References 1. http://www.osha.gov/doc/outreachtraining/htmlfiles/introsha.html
Online OSHA Resources
OSHA laws and regulations can be viewed online at www.osha.gov/comp-links.html, and assistance for employers is available at www.osha.gov/dcsp/compliance_assistance/index.html, which includes a special section for small businesses.
Additional resources may be found at the following sites.
- All About OSHA:
www.osha.gov/Publications/about-osha/3302-06N-2006-English.html. - Bloodborne Pathogens and Needlesticks Final Rule:
www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_ id=16265. - Occupational Safety and Health Standards:
www.osha.gov/pls/oshaweb/owastand.display_standard_group?p_toc_level=1&p_part_ number=1910. - Personal Protective Equipment:
www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9777. - Recording and Reporting Occupational Injuries and Illness:
www.osha.gov/pls/oshaweb/owastand.display_standard_group?p_toc_level=1&p_part_ number=1904
